Children Act

159. Power to dispense with consent

Edition: 2019-01-18 · Repealed

159. Power to dispense with consent

(1)The court may dispense with any consent required under paragraphs (a),

(b), and (c) of subsection (4) of section 158 if it is satisfied that—

(a)in the case of the parents or guardian of the child, that he has abandoned, neglected, persistently failed to maintain or persistently ill-treated the child:

Provided that—

(i)abandonment may be presumed if the child appears to have been abandoned at birth or if the person or institution having care and possession of the child has neither seen nor heard from a parent or guardian of the child for a period of at least six months;

(ii)persistent failure to maintain may be presumed where despite demands made, no parent or guardian has contributed to the maintenance of the infant for a period of at least six consecutive months and such failure is not due to indulgence;

(b)in the case of a person liable by virtue of an order or agreement to contribute to the maintenance of the child, that he has persistently neglected or refuses to so contribute;

(c)in any case, except in respect of the consents required under paragraphs (e) and (f) of subsection (4) of section 158 that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent has been unreasonably withheld.

(2)The court may dispense with the consent of the spouse of the applicant for an adoption order if satisfied that the person whose consent is to be dispensed with, cannot be found or is incapable of giving consent, or that the spouses have separated or divorced and are living apart and that such separation is likely to be permanent.

(3)The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where the consent so given by any person is subsequently withdrawn on the grounds only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to have been unreasonably withheld.

(4)In considering whether or not to dispense with the consent of any person to the making of an adoption order, or whether to grant leave or refuse leave under the provisions of subsections (1) and (2) of this section, the court shall regard the interests of the child as paramount and subject thereto, shall consider firstly the interests of the parents, guardians or relatives of the child and secondly the interests of the applicants.

(5)Any person’s consent to the making of an adoption order, may be withdrawn prior to the filing of the application without the leave of the court and with the leave of the court any time after the filing of the application for the adoption order but prior to the making of the order:Provided that the court may at the request of the person withdrawing the consent keep his name and identity confidential.

(6)Where any person whose consent to the making of the adoption order is required by section 158 does not attend the proceedings for the purposes of giving it, then subject to the provisions of subsection (7) of this section a document in the prescribed form and attested by a person of such class as may be prescribed signifying his consent to the making of such order shall, if the person in whose favour the order is to be made is named in the document or (where the identity of the person is not known to the consenting party) is distinguished therein in the prescribed manner, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings.

(7)Any document, whether executed in or outside Kenya, shall be admissible without further proof of the signature of the person by whom it was executed, and for the purposes of this subsection a document purporting to be attested as aforesaid, shall be deemed to be so attested and executed on the date and at the place specified therein unless the contrary is proved.

(8)A document signifying the consent of the mother of the child, shall not be admissible under this section unless—

(a)the child is at least six weeks old on the date of the execution of the document;

(b)the document is attested by a person of the class prescribed for the purposes of subsection (2).

Guardian ad litem

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Source: Kenya Law